Pages

Friday, August 30, 2013

The arguments put forward by the Tribunal's prosecution lawyers on 22 August seeking a contempt notice against Human Rights Watch, contained a level of mendacious hyperbole that represents a particular low in prosecutorial standards at this Tribunal.

It is difficult to understand, why the prosecutors might want to make spurious claims which are so demonstrably untrue, or misrepresenting of the truth, when issues of fact are so crucial to the integrity of current trial proceedings - and indeed the prosecution's reputation.

For most of the three hours three given over by the tribunal to hear this application, the prosecution on Thursday ignored the substantive criticisms made by HRW and instead concentrated its fire on traducing the reputation of HRW. It was so one sided, so full of inaccuracy and misrepresentation that it was shocking the prosecutors could get away with it in a court of law.

Human Rights Watch is a large organization, undertaking human rights investigations into governments and non-state bodies around the world (90 countries apparently), which brings to the notice of a global audience violations that governments, their supporters and others would rather remain hidden. Inevitably along the way it has picked up enemies and critics - and there will of course, as indeed there should be, those who simply have different views about the way the organization should undertake its work.

But the prosecution appears to have little understanding of this. Its strategy - set out in both its written application and the oral arguments - was to take a few articles (a number of them in fact written by the same person) exaggerate their implications, fail to provide any context, and then mix it with a great deal of falsehood and misrepresentation. And 'Voila!' There you have a picture of an amoral unethical organization, doing the bidding of the powerful, without a modicum of competence.

That this is a wholly untrue representation of HRW with no basis in reality appears irrelevant to the prosecutors.

In fact Tapos, the main prosecutor putting forward these arguments in court, got pretty close to suggesting that HRW was in fact funded by the supporters of the accused. One should not be surprised of this accusation of course - since this is a common allegation thrown around in Bangladesh these days against anyone who says just about anything critical of the tribunal.

It is my view that contempt proceedings have been hugely overused by all parties in relation to this Tribunal, and that the prosecutors were very ill-advised to proceed with a contempt application against Human Rights Watch. Nonetheless, having decided to file an application (which is their right), instead of doing everything it could to discredit a highly and globally respected human rights organization, they should simply have focused on the substantive reasons why it was their view that HRW's statement were contemptuous.

Perhaps it was because the prosecutors thought that their arguments were not that strong on the substantive issues that they tried to traduce HRW's reputation?

Here below are details of the false and/or misleading information provided by the prosecution to the tribunal. Separate posts will consider the arguments relating to the substantive issues relating to the contempt application.

DIRECT FALSEHOODS

Falshood 1: "Human Rights Watch does not publish details of its donors."
The prosecution made a categorical statement that HRW does 'not disclose its donors'. This was not said once, but was repeated a number of times. This claim was then combined with an allegation that HRW simply produces the information that is in the interest of these 'unknown' donors.

In fact HRW does publish details of all donors who provide it over $5,000**. This is available in the hard copy of the organisation's annual report.

Falsehood 2: "HRW has not published any report on Saudia Arabia"
The prosecution alleged that HRW received money 'from Saudia Arabia' (though it was not made clear from whom, it was implied it was from the government) and that as a direct result of this funding, HRW does not produce any reports on the violations in the country.

It is a direct falsehood to suggest that HRW has failed to write criticisms of the human rights situation in Saudia Arabia. In fact since just the beginning of this year, it has issued at least 18 press releases/reports. So the allegation that as a result of any money it may have received from Saudia Arabian citizens influenced its reporting is bogus.

And on the issue of receiving money from 'Saudi Arabia'. If any money was received it was from 'citizens'. Are the prosecutors suggesting that HRW should not receive financial support from people of particular ethnicities or particular nationalities - simply because their governments are abusive? For those who want to understand the full context concerning two meetings that HRW did hold in Saudia Arabia, it may be best to read this, a context which was not provided by the prosecutors.

Falsehood 3: "HRW publicly supports CIA renditions to other countries"
This was a statement made by the prosecutor, Tapos with no caveats or context. The prosecution claim refers back to an article in the Los Angeles Times published in 2009, where a HRW official was quoted as saying: '"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured -- but that designing that system is going to take some time."' It is not clear exactly what this means, what are the limited circumstances in which HRW might support rendition. Perhaps significantly, there is no other HRW statement repeating this. It seems to be a singular reference.

So it was false to suggest that HRW supports or supported the kinds of CIA renditions that the tribunal would have understood the prosecutor to have been referring.

MISREPRESENTATIONS/ODDITIES IN CRITICISM OF HRW

1. Prosecutors' 'Pro-Isreali' position

In a country that is amongst the very few that does not even recognise the existence of Israel, it was to say the least fascinating to see the Bangladesh government appointed prosecutors support those organisations and individuals critical of HRW reports setting out human rights violations committed by the Israeli state and security forces - and going on to criticise HRW for bias against Israel!

For the prosecutors to quote approvingly 'pro-Israeli' NGO's (for example the organisation, NGO Monitor, in particular) who criticise HRW for their reports on Israel is failing to appreciate the deep divisions that exist in the politics of the middle East. The prosecutors seem to have misunderstood that it is only those who provide pretty much unconditional support to the Israeli state and its military actions against the palestinians who seem to be party to these criticisms against HRW.

The prosecutors made great play of the criticism of Robert Bernstein, a founder of HRW who alse acted as the organisation's president for many years. However, they failed to provide a context for his criticism - which was again about HRW's work on Israel. Bernstein simply did not think HRW should consider human rights violations that may have been committed by Israel as it is an 'open society'. It is his view that HRW should only focus on closed societies. As HRW stated in response to this "Any credible human rights organization must apply the same human rights standards to all countries." Do the prosecutors disagree with that?

They also made a criticism of HRW recieving a very large grant from the Open Society foundation - with the prosecutor stating that this was 'temptation of the wealthy'. Again the criticism about this grant only comes from 'pro-Israeli' lobbyists - the article which the prosecutors referred to was written by the person who runs NGO monitor, who consider George Soros (the man who ultimately runs Open Society) to be against Israel.

However, there appears to be absolutely no link between the grant and Israel - and it appears unclear what was the nature of criticism which the prosecutors trying to make. HRW's press release about this states: "The grant is intended to support the internationalization of Human Rights Watch, enabling it to staff advocacy offices in key regional capitals around the world and to deepen its research presence on countries of concern. Human Rights Watch plans especially to increase its capacity to influence emerging powers in the global South to push a pro-human rights agenda."

2. Honduras
The prosecutors referred to 'criticism' made by academics concerning HRW's work on Honduras. However a reading of the statement given by the academics shows that the statement is less criticism and more an urging of HRW to publish more statements criticising the overthrow of the government in Honduras. The letter acknowledged that HRW had been 'quick to condemn the illegal coup d'etat of June 28 and the human rights violations that occurred over the following week, which helped shine the spotlight of international media on these abuses ...'.

The tribunal prosecutors moreover failed to tell the court that four days later HRW published a press release referring to a report issued by the Inter American Commission on Human Rights. The press release stated:

"The finding by the Inter-American Commission on Human Rights of widespread abuses in Honduras should compel the international community to take firm action, such as targeted sanctions, to resolve the country's ongoing crisis, Human Rights Watch said today.

The commission released a report on August 21, 2009, showing a pattern of serious violations under the de facto government, including excessive use of force, arbitrary detention, sexual violence, and attacks on the media, as well as several confirmed deaths and possible "disappearances." The commission also documented an absence of effective legal protections from abuse.

"Given the ongoing abuses documented by the commission and the lack of effective legal protection, it is urgent that the international community exert concerted and effective pressure to restore democratic government in Honduras," said José Miguel Vivanco, Americas director at Human Rights Watch.

It is rather difficult to understand what the prosecutors criticism was in relation to HRW's work on Honduras. Simply that HRW did not issue a press release quickly enough?

3. Ethiopia
The prosecutors also referred to criticisms of the Ethiopian government made in 2009 and referred in this connection to an Economist article titled, 'The government says Human Rights Watch has got it wrong. Really?'. Perhaps the prosecutors should have realised, simply from the title of the article itself that the Economist was in fact supporting the HRW allegations. As the article states:

"The Ethiopian investigation did not, however, examine all of Human Rights Watch's accusations. Some executions listed by the group go unchallenged or are blamed unconvincingly on the guerrillas. The report skims over the Ogaden's humanitarian emergency, which Médecins Sans Frontières, a French-based charity, lists as one of the world's ten worst. The Ethiopian report flatly denies that the government blockaded separatist strongholds during a famine, thus starving civilians. The Ethiopians also lambast Human Rights Watch for not visiting the Ogaden, knowing that it was they who blocked the visit. They claim that the Ogaden has been open to anyone, yet most independent journalists have been banned from travelling there freely. Several aid organisations, including the International Committee of the Red Cross, have been kicked out. Aid workers there speak only anonymously, for fear of expulsion."

Again, it is therefore not entirely clear what is the criticism against HRW here - unless it is to use comments made by any oppressive government as ammunition against the human rights organization.

4. "Employing Nazi supporters"
The prosecutor claimed in court that HRW employed 'Nazi supporters in war crimes investigations'. (This claim could perhaps have been put within the category of falsehoods, rather than misrepresentations - but there is some ambiguity here so it perhaps is best to discuss the claim here.)

The prosecution was referring to Marc Galasco, who was a collector of Nazi and US war memorabilia. He had worked at HRW since 2003 before the controversy erupted in 2009 about his interest in these memorabilia. Although there was no evidence that he had any nazi sympathies or was anti-semetic, he was accused of being so. He was initially defended strongly by HRW, but was shortly after suspended by the organisation pending an investigation, and he resigned in 2010. Interestingly, since leaving HRW, Garlasco served as senior civilian protection officer for United Nations Assistance Mission in Afghanistan (UNAMA), heading the UN's Protection of Civilians office and In early 2012, was the U.N. senior military advisor for the Human Rights Council's (HRC) Independent Commission of Inquiry on Libya, where he investigated civilian casualties. No criticisms seem to have been made about Galasco since joining the UN. A summary of the claims made by different sides of this argument can be found here.

At the very least the prosecutions claims that HRW was employing 'Nazi supporters in war crimes investigation' is very misleading.

5. "HRW appointed a known terrorist on its advisory board"

This is a highly disputed assertion, and if the prosecutors were going to raise this point, they should clearly have explained the nature of the uncertainty. Prosecutors were apparently referring to the appointment of Shawan Jabrain to its middle-eastern advisory board. Jabrain is the General Director of Al Huq, a highly respected palestinian human rights organization based in Ramallah. He has worked there since 1987, and states that he has not been involved with Palestinian Front for the Liberation of Palestine since the mid-1980s. The Israeli security agencies do not beleive this and as a result he has been subject to a travel ban. To suggest that Jabrain is a 'known terrorist' - and imply that at the time he was appointed by HRW onto its advisory board he was an 'active terrorist' misrepresents the reality. It is notable that Amnesty International supported Human Rights Watch in calling for an end of the Israeli government's travel ban on him. It is rather suprising that the tribunal prosecutor would seek to rely on a judgement resulting from secret hearings of an Israeli court (see above about prosecutors and Israel).

6. Conference paper by Paula Casaca, Executive Director, South Asia Democratic Forum
A long extract of a paper criticizing Human Rights Watch, which was submitted at a conference organized just last month, was read out by Tureen Afroz, a prosecutor - and given a great deal of authority by her in their attacks against HRW (See end section here).

There are however so many inaccurate assertions, confusing and misleading comments in the extract read out by Tureen - that it is unclear why she would seek to rely on it.

- Casaca said that HRW does 'not disclose the sources of its funding'. An inaccurate statement (see above)
- Casaca appears to think that if you support the end of impunity (which he acknowledged HRW said that it did), you can NOT at the same time criticise the process which has been established to end that impunity. He presumably believes that however unfair the system established to end impunity, it cannot be criticised. But clearly it is entirely consistent for HRW toboth support the principle of ending impunity in relation to 1971 crimes, whilst criticising aspects of the law established to carry this process out in order to ensure that the process of dealing with impunity is fair.
- Casaca claims that the only reason HRW gives for raising a concern about the role of 'politics' in the trial is a comment form the 'leader of the main opposition party, the BNP'. He then goes onto say: "It is quite extraordinary that HRW accusation of mixing politics with human rights is done on the sole basis of the declaration of a political leader; that is, HRW explicitly mixes human rights and politics and subsequently accuses others of doing so." HRW however have nowhere quoted the BNP leader to justify its view that 'the trials may not meet international fair trial standards and may be subject to political influence." It is unclear what Casaca is referring to when he makes this point
- Casaca criticises HRW for using the word 'atrocities' rather than the word 'genocide' in the title of one of its 2009 press releases. Casaca appears not to understand that the term 'genocide' is a legal term and that HRW may well at the time of writing the press release not wanted to pre-judge the issue.
- Casaca criticises HRW for failing to show the 'supposed contradictions of the Genocide definition used by Bangladesh and international law'. However, HRW's statements sets out those parts of the 1971 Act which are contradictory.
- Casaca then makes some a rather incomprehensible claim that HRW is behind an “India/Bangladeshi conspiracy fabricating proofs against good Muslim leaders” - which is of course faintly ridiculous. A footnote in the article seems to suggest that HRW's press releases relating to the abduction of the Sukhranjan Bali (which Bali has now asserted to be true) and his presence in India, is part of a 'sectarian' agenda

----------
** An earlier version of this post stated that only donations above $25,000 were in the annual report. In fact, it is all donations received over $5,000 as now stated.

Tuesday, August 27, 2013

On 22 August 2013, the tribunal heard the prosecution's oral arguments in support of its written application that Human Rights Watch (and two individuals who work for it) should be held in contempt of court for a press release that it wrote on the Ghulam Azam trial judgement.Chief Prosecutor
Chief Prosecutor, Golam Arif Tipu first of all stood up and spoke briefly to the judges. He said that 'it is a principle of justice for the court to take a decision on the merit of the arguments and pass necessary orders. The application today will be made by other colleagues, and I am here incidentally to make introductory submissions.' He then quoted paragraph of the prosecution application

4. That in the said article dated 16th August, 2013, the Opposite Party No. 1 with bias and mala fide intention most unethically commented, while the Appeals are pending before the Appellate Division of the Supreme Court of Bangladesh, on the Professor Ghulam Azam's trial proceeding at this Hon'ble Tribunal and the evidential issues of the same case.

He said that this was the background of the the present case. He then read out para 5 of the application

5. That in the said scandalising article, the Opposite Party No. 1 alleged, inter alia, that:

(a) Judges of this Hon'ble Tribunal improperly conducted an investigation on behalf of the prosecution in the Azam Cose;

(b) There was collusion and biasness among prosecutors and judges in the Azam Case;

(c) The Tribunal failed to take steps to protect defense witnesses of the Azam Case,

(d) There were changes in the judicial panel during trial of the Azam Case; and

(e) There was lack of evidence to establish guilt beyond a reasonable doubt in the Azam Case.

Sultan Mahmud Simon
Another prosecution lawyer, Sultan Mahmud Simon then replaced the chief prosecutor. He said that the prosecutors came to know about the HRW document when they read the newspapers. He said that the purpose of the application was to uphold the sanctity and dignity of the criminal justice system. He made the point that the matter of Golam Azam's appeal was now with the appellate division. He again went through the conclusions made by HRW. He emphasised that one of the allegation alleged collusion between the prosecution and the judiciary.

He then read out a number of sections from the 1973 International Crimes (Tribunal) Act (as amended).

6 (1) For the purpose of section 3, the Government may, by notification in the official Gazette, set up one or more Tribunals, each consisting of a Chairman and not less than two and not more than four other members.
(2) Any person who is a Judge, or is qualified to be a Judge, or has been a Judge, of the Supreme Court of Bangladesh, may be appointed as a Chairman or member of a Tribunal.]
(2A) The Tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial.]

8. (1) The Government may establish an Agency for the purposes of investigation into crimes specified in section 3; and any officer belonging to the Agency shall have the right to assist the prosecution during the trial.

19. (1) A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.

And also certain rules from the rules of procedure:

44. The Tribunal shall be at liberty to admit any evidence oral or documentary, print or electronic including books, reports and photographs published in news papers, periodicals, and magazines, films and tape recoding and other materials as may be tendered before it and it may exclude any evidence which does not inspire any confidence in it, and admission or non-admission of evidence by the Tribunal is final and cannot be challenged.

46A. Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Tribunal to make such order(s) as may be necessary to meet the ends of justice or to prevent abuse of the process.

50 (A)(2) [text to be added]

He then said that there was no ambiguity to the rule 50(A)(2).

He then read out section 11(4) of the ICT Act containing details of the offence of contempt:

A Tribunal may punish any person, who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal, with simple imprisonment which may extend to one year, or with fine which may extend to Taka five thousand, or with both.

Tapos Kanti Baul
Prosecutor Tapos Kanti Baul then began to make arguments. He referred to the copy of the press release (annexed to the prosecution application) and said that the name Human Rights Watch (HRW) is on the left hand side, and that below it is the title: 'Bangladesh: Azam Conviction Based on Flawed Proceedings', and there was a subtitle, 'Analysis Outlines how Fair Trial Rights of Accused Seriously Compromised' and that underneath this, the date 'August 16, 2013' was mentioned.

After reading out the press release, he said that this is a 'scandalous article' He then read out para 6 of the application

That the Petitioner concedes that issues relating to above mentioned allegation [in para 5] (e) are clearly a matter sub-judice and issues relating to allegations (c) and (d) are of no relevance to the Petitioner and as such, the Petitioner does not at all rest his prayer on issues relating to allegations (c), (d) and (e).

He then explained this by confirming that the prosecutors in this application are only interested in issues (a) and (b) as set out in para 5 - (that is (a) allegation that judges improperly conducted an investigation on behalf of the prosecution in the Azam Cose, and (b) there was collusion and biasness among prosecutors and judges). He then read out para 7 of the application

That the petitioner submits that statements made in reference with the issues relating to above mentioned allegation (a) and (b) are biased, baseless, utterly false and fabricated, ill-motivated, and are not made in good faith. Such statements were made only to scandalize this Hon'ble Tribunal and its process (by exercising its independent judicial functions and also fair trial) and to undermine the confidence of the people in the integrity of this Hon'ble Tribunal and its process.

He said that the article was 'intended to undermine the tribunal', which is clear if you consider the 'timing of its publication when the proceedings were pending before the supreme court of Bangladesh'. He then read out para 8 and 9 concerned with the relevant section in the 1973 Act and in the rules of proceedings dealing with contempt of court (see section 11 of 1973 Act above)

He then said that the HRW article clearly 'tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal,' (which is what needs to be proved for contempt)

He then went on to discuss the jurisdiction of the tribunal and argued that 'the "tribunal" not only includes ithe tribunal itself but also the judges, registrar and other staff and also includes the prosecution and the defense and investigative agency and witnesses and victims'

He said that if anything is done outside of the court which tends to prejudice the case of one of the parties which comes within the wording of section 11(4) then the tribunal has jurisdiction.

He argued that the term 'any person' includes a 'legal or human person' and included anyone who 'penned this scandalous article.'

He said that the tribunal has jurisdiction whether the 'person' is living either in Bangladesh or abroad - if that person does anything can be brought under the jurisdiction of the tribunal.

He then read out para 12

"That the Petitioner humbly submits that under section 11 (4) of the 1973 Act, this Hon'ble tribunal is empowered to punish 'any person', which includes both natural and legal person, whether living in Bangladesh or abroad, who 'tends to bring it or any of its members into hatred or contempt' and/or 'does anything which constitutes contempt of the tribunal' "

and said that the legal position was 'crystal clear' - words that were also spoken by the chief prosecutor from his seated position.

The prosecution then read out paras 13 and 14 and again made the point about pending proceedings.

He then moved onto the section of the application dealing with the 'background of the opposite parties'. He read out para 15

That Opposite Party No 1 is an US based international human rights organization which has been in operation for the last 30 years or so" In its official website, at http://www.hrw.org/about, it claims to be 'one of the world's leading independent organizations dedicated to defending and protecting human rights'. It further claims that by focusing international attention where human rights are violated, it 'gives voice to the oppressed and hold oppressors accountable for their crimes'.

and said that the question is whether the stated objectives of Human Rights Watch is 'really a lie and a false statement.' He said that there were major criticisms of Human Rights Watch. He then read out para 16 of the application:

That the Opposite Party No 1 has been vehemently criticized worldwide for its motivated activities as a human rights organization. Some of the major allegations against the Opposite Party No 1 include, inter alia:

(a) allegations of poor research and inaccuracy;

(b) allegations of selection bias;

(c) allegations of ideological bias;

(d) allegations of unethical fund raising policies;

(e) allegations of bias for or against particular nations;

(f) allegations of appointing Nazi policy supporters (such as, Mr. Marc Garlasco) as investigator to report on war crimes and crimes against humanity;

He then started to refer to a bundle of papers that he passed to the tribunal judges to substantiate these claims

He pointed to an article written by Robert Bornstein titled Rights Watchdog lost in the Middle East and said that Bornstein was a founder of the organization, and chairman for 20 years. He then read out the opening line:

'As the founder of Human Rights Watch, its active chairman for 20 years and now founding chairman emeritus, I must do something that I never anticipated: I must publicly join the group’s critics.'

He then read out the following excerpt:

"But how does Human Rights Watch know that these laws have been violated? In Gaza and elsewhere where there is no access to the battlefield or to the military and political leaders who make strategic decisions, it is extremely difficult to make definitive judgments about war crimes. Reporting often relies on witnesses whose stories cannot be verified and who may testify for political advantage or because they fear retaliation from their own rulers."

He then said that 'this is the same case in our sitaution [in Bangladesh] as well. There has been no represention in the tribunal of HRW. They did not set foot in this tribunal, but they come to denounce the judgment.'

He then referred to 'selection bias' - where HRW 'makes comments selectively. In relation to this he mentioned that HRW 'shows slant against Israel, which shows biasness' and referred to the criticisms of the organsation NGO Monitor. He then asked: 'who 'suffers because of HRW selectivity? The people of the World suffer.'

He then referred to HRW and Haiti claiming that the organisation had inaccurately reported on the overthrow of one of the leaders. He said: 'In world dominated by wealthy, NGO's work by saying what the the powerful want to hear. ... They are working as a tool of the powerful. That is the main allegation.'

He then again referred to articles which he said showed that HRW was 'anti-Israel' and suggested that HRW was criticising Israel, whilst not willing to criticise Hizbollah.

Tapos then spoke about HRW's 'ideological bias'. He said that HRW 'supports certain states and those who support their ideology' He then referred to an article (from the Global Jewish News Source) critical of HRW entitled, Who are the Israeli Accusers?

He then moved onto 'Unethical fund raising practices' of HRW and said that there is no information on who funds HRW and that they 'speak for whoever pays them'. The Chief Prosecutor then said 'They are out to make money'. Tapos then referred to an article in the Atlantic Magazine, 'Fundraising Corruption at HRW' He also referred to a $100 mill donation from the Soros open society, and an article which claimed that the HRW was 'Selling out to Soros'. The prosecutor said that HRW was selling out to the 'temptation of the wealthy'.

He said that HRW does not 'disclose its funds in annual reports.' He then refered to an article in the Wall Street Journal, 'Human Rights Watch goes to Saudia Arabia'. The prosecutor then said that 'he had not seen any [report] by HRW on Saudia Arabia. They keep mum about human rights violations in Saudi Arabia.'

Tapos then talked about bias and said that there were allegation relating to 'Latin America, Haiti, Lebanon, Ethiopia and Israel.'

He then said that there allegation of HRW employing 'Nazi supporters who were involved in war crimes investigations' and 'the appointment of known terrorists on the advisory board.'

He also argued that HRW 'publicly supported CIA renditions to other countries' and referred to this article

He said that there was a wide number of reports against HRW and what he had shown the court were just a few of them. 'Even insiders of HRW publicly blame the organisation for unethical policies.'

The prosecutor then went back to reading from the application:

19. That the Petitioner submits that there is absolutely no base for bringing such scandalising allegation upon this Hon'ble Tribunal. The Petitioner also denies that there was ever any such request made by the prosecution in the Azam Case. Further, the judgment of the Azam Case does not at all endorse any such investigation being done by this Hon,ble Tribunal.

20. That the Petitioner submits that such allegation made by the Opposite parties are baseless, complete distortion of facts, ill-motivated and as such, unreliable. These statements were made merely to scandalize this Hon'ble Tribunal and its process. Also, the statements were made not in good faith and as such, tantamount to contempt of this Honorable Tribunal.

21. That further in the above mentioned scandalous report, originated by the the Opposite Parties, alleges that there was collusion and biasness among prosecutors and judges in the Azam Case.

22. That the Petitioner submits that there is absolutely no base for bringing such scandalising allegation upon this Hon'ble Tribunal. The petitioner also denies that there was ever any unholy or discrete association between this Hon'ble Tribunal and the prosecution. These statements were made merely to scadalize this Hon'ble Tribunal and its process. Also, the statements were made not in good faith and as such, tantamount to contempt of this Honorable Tribunal.

23. That the only reference made by the Opposite Parties to its finding of collusion and biasness among prosecutors and judges in the Azam Case was an alleged skype communication between a member of the bench with his acquaintance at a very personal level. The Petitioner concedes that the said member of the bench did voluntarily resign to avoid any unwanted controversy. However, the Petitioner submits that no inquiry, whether legal, social or technical, was ever made to find the authenticity of the said skype communication and as such, the existence, let alone, content of the skype communication, can not be relied upon to allege a collusion and biasness among prosecutors and judges in Azam Case.

At this point he stopped and refered to three decisions by one or other of the two tribunals - one on 3 Jan 2013, another on 21 Jan 2013 and another on 13 December 2012 - which had raised questions about the relaiblity and authenticity of the Skype tapes, and stated that in all three the tribunal rejected giving any consideration to what was contained on the tapes. 'HRW should not talk about baseless allegations [in skype tapes] and have only done so to scandalise the court.'

The prosecutor then went on to discuss the 'lack of good faith' shown by HRW, and read out para 24 of the application.

24. That the Petitioner submits that the allegations (a) and (b) made in the scandalous article originated and published by the Opposite Parties lack 'good faith' on the part of the Opposite Parties. This is because:

i. For that the false and unreliable statements made in allegations (a) and (b) contained in the scandalous report of the Opposite Parties have unnecessarily questioned the image, standing and reputation of this Hon'ble Tribunal and as such, scandalized this Hon'ble Tribunal;

ii. For that the Opposite Parties have never carried on any independent investigation/research/inquiry to make such scandalous remarks contained in allegations (a) and (b) about this Hon'ble Tribunal and its process;

iii. For that the statements were inaccurate as it does not rely upon any reliable authority or in that matter any authority at all;

iv. For that the Opposite Parties, claiming to be an independent trial observer of the ICT BD, has never personally attended through any of its member or representative to observe a single trial of this Hon'ble Tribunal whether in Azam Case or other;

v. For that the false and unreliable statements made in allegations (a) and (b) contained in the scandalous report of the Opposite Parties are made long after pronouncement of the judgment of the Azam Case especially, when the Appeal of the Azam Case is pending before the Hon'ble Appelate Division of the Supreme Court of Bangladesh;

vi. For that the Opposite Parties are in a chronic habit of publishing reports relying upon poor research and inaccurate facts;

vii. For that the Opposite Parties are in a chronic habit of exercising selection and ideological bias;

viii. For that the Opposite Parties are in the habit of following unethical, immoral and undisclosed financial policies ;

ix. For that the Opposite Parties are heavily dependent upon their undisclosed donor (private persons and private organizations) driven fund and as such, committed to fulfill the agenda of such undisclosed donors;

x. For that the Opposite Parties do not practice any ethical standard in its recruitment policies and even go a long way to accommodate terrorists and human rights violators in their board;

xi. For that the Opposite Parties have illegally intervened in the judicial process of a sovereign country and tried to assassin the image of the entire process of trial of war criminals at the ICT BD and the judicial system, in general, of Bangladesh;

xii. For that the Opposite Parties have wrongfully exercised their 'freedom of expression' as guaranteed under Article 19 of the (Universal Declaration of Human Rights, 1948 and Article 13 of the American Convention of Human Rights, 1969 and as such, an contempt rule upon them shall not merit any 'chilling effect';

xiii. For that the Opposite Parties have violated all norrns of journalistic morality as expected under the international law;

xiv. For that the Opposite Parties under the veil of an human rights organization cannot become a partisan to a human rights issue simply because their undisclosed donors demand so;

He said that there was no record of HRW coming to the tribunal, and said that they had looked at the registers at the time when judgments were given and there was no record of someone from HRW attending.

He said that the organisation 'depends heavily on undisclosed donors and so to further then own agenda. The organisation has no ethics.'

Tureen Afroz
The prosecutor Tureen Afroz then started to give her presentation. The judges were initially in two minds about allowing her to speak, but finally allowed her

She first of all mentioned the allegation by HRW that the judges had improperly conducted an investigation on behalf of the prosecution. She passed up a file of the leading newspapers reporting on the event and suggested that they did not show that such an investigation had been undertaken. 'HRW has relied on others or sources not disclosed.'

She said that they were 'not against international human rights organizations' and said that they played an important role, as do all the others parties in this tribunal, including prosecutors, defence and the tribunal judges.

She then mentioned the allegation relating to colluion between the judges and the prosecutors. She said that when you looked at the HRW appendix, the only reference it gave on this issue was to a blog on the Economist website and nothing more. So she said their conclusion is that the HRW allegation is 'based on the blog writing' The alleged conversations 'however have no authenticity or reliability. I dont know what conversation exist or not.'

She then referred to Human Rights Watch supposed meeting with the tribunal judge. 'When did this meeting take place, I dont know. I dont know where it took place. Can human rights organisations take part in meetings with judges?.This is an absurd logic'

Tureen then criticised HRW in using the word 'should' in its statement - when it stated in its report that 'At a minimum, the ICT should have ordered an investigation into the wrongdoing' - and said that this showed that HRW had 'no respect for sovereignty of this country or its judicial system.'

She then quoted HRW stating that, 'instead, the tribunal authorities simply disregarded this irrefutable evidence of judicial bias' and said, 'how can HRW make a claim that this is irrefutable ... This is not protecting human rights at all.'

She then gave the tribunal another set of documents relating to the obligations of international human rights organizations. Again she stated, 'We are not against human rights organisations'. She referred to some case law and said that freedom of expression has its limitation.

'Human Rights Watch is not an independent organization. It is not an independent observer of this tribunal. This whole this lacks truth. It lacks good faith,' she said.

“Human Rights Watch” – a private organisation that does not disclose the sources of its funding and does not reveal conflicts of interests of its responsible personnel – is the most clear example of a partisan campaign where an independent human rights checking was expected.

“Equality” and “proportionality” are two of the most basic principles of international customary law, and I believe they should lay at the heart of any appreciation of the way the International Criminal Court was established and acted in Bangladesh.

Many or possibly the vast majority of the criticisms raised on the procedures followed by the Bangladeshi authorities are most likely warranted by themselves, the issue here is to appraise up to what point these criticisms respect these two general principles.

In the first press release publicising recommendations addressed by HRW to the newly elected Bangladeshi authorities in 2009, no direct mention is made to the Court issue but only a small reference of the need of amending legal provisions in the letter to the Bangladeshi authorities.16

Shortly afterwards, in the context of a general report titled “Ignoring Executions and Torture Impunity for Bangladesh’s Security Forces” HRW, while rightfully criticising the long-­‐ existing culture of impunity on crimes against humanity in the country, introduces a paragraph that in practical terms contradicts the call to end impunity:

“In January 2009, the Bangladesh parliament adopted a resolution requesting the government to take immediate action “to try the war criminals. “In March, Law Minister Shafique Ahmed announced that the trials would be held under the International Crimes (Tribunal) Act, 1973. The Act does not require Bangladesh’s regular criminal procedure and evidence laws to be applied. This raises concerns that the trials may not meet international fair trial standards and may be subject to political influence. Death sentences may be handed down.”

HRW does not offer any argument which could explain this contradiction, how can it claim to be in favour of ending impunity while at the same time denouncing any measure directed towards ending impunity?

The only reason it gives for raising the issue of “politics” in the procedures is a declaration from the leader of the main opposition party, the BNP as quoted from a newspaper. It is quite extraordinary that HRW accusation of mixing politics with human rights is done on the sole basis of the declaration of a political leader; that is, HRW explicitly mixes human rights and politics and subsequently accuses others of doing so.

HRW made a first exclusive press release on the institution of the Bangladeshi International Criminal Court on the 8th of July 2009 that, while apparently congratulating the country for the act, gives clout to accusations on alleged failures to adapt the law to the evolution of international law. The chosen title to the press release clearly indicated what were HRW concerns and objectives: “Bangladesh: Upgrade War Crimes Law Failure to Meet International Standards Could Undermine Credibility of Trials for 1971 Atrocities”.

By this unjustified and unwarranted publicity HRW downgraded the Genocide crime into “1971 Atrocities”. The title also shows the other objective of the organisation: to argue with eventual failures of the process to undermine the credibility of the trials.

As it did in its first positioning in May 2009, HRW keeps referring in general terms to incongruence between international and Bangladesh law, but fails to make explicit, for instance, what are the supposed contradictions of the Genocide definition used by Bangladesh and international law.

From there onwards, we can easily follow HRW vast and ever more radical array of public positions and arguments against the international court by reading the extensive propaganda made by the political forces behind those accused in the international Court.

HRW press releases afterwards became ever more frequent and politically biased. Whereas very little is said on the widespread terror actions targeting minorities by the defenders of those convicted for Genocide19a set of implausible and unchecked stories is publicised aimed at building an image of an “India/Bangladeshi conspiracy fabricating proofs against good Muslim leaders”.

Whoever followed HRW set of press releases in the last few years will find a sectarian and biased account of events with a clear political agenda set on attacking Bangladeshi authorities and whitewash Islamists standing accused of Genocide crimes in the past and present.

That an organisation which was supposed to fight impunity and to act independently on behalf of human rights does exactly the opposite is perhaps the biggest drama of our present times.

The prosecutor Tapos then came to the front of the court and read out the 'prayer' to the court from the application.

(a) issue a contempt notice stating that why a contempt proceedings should not be initiated against the Opposite Parties in exercise of power of this Hon'ble Tribunal under section 11(4) of the International Crimes Tribunals) Act, 1973, read with Rule 45 of the International Crimes (Tribunal-l) Rules of Procedure;
(b) upon hearing, convict the Opposite Parties under section 11(a) of the International Crimes (Tribunals) Act, 1973, read with Rule 45 of the International Crimes Tribunal) Rules of Procedure, 2010 for publishing an article dated 16.08.2013 (Annexure - A) through its worldwide website and thereby scandalising this Hon'ble Tribunal by biased, baseless, false and fabricated and mala fide publication (Annexure -A), and as such, have either 'tended' to bring this Hon'ble Tribunal into hatred or contempt and/or have 'done' an act which constitutes contempt of the Tribunal';
(c) to stay further display, publication, circulation or use in any matter or in any other form of the scandalous Article dated 16.08.2013 (Annexure-A)
(d) upon conviction, sentence the Opposite Parties, with imprisonment of one year and/or adequate fine and forward and notify for the execution of the same to the competent state, i.e., USA through the Ministry of Foreign Affairs;
(e) issue any other order(s) or direction(s) that this Hon'ble Tribunal deems fit and proper for the interest of justice.

The tribunal then set 2 September 2013 as the date for passing an order.

1. That on 15th July 2013, the Hon'ble International Crimes Tribunal No. 1 of Bangladesh delivered its judgment in the Chief Prosecutor versus Professor Ghulam Azam, ICT-BD Case No. 06 of 2011 (henceforth, Azam Case) and sentenced him for 90 years of imprisonment since he was found guilty, beyond reasonable doubt, for the offences, under section 3(2) of the International Crimes (Tribunals) Act, 1973 (henceforth, the 1973 Act). committed by him in 1971.

2. That the Appeals of the Azam Case against the conviction and sentencing are now pending before the Appellate Division of the Supreme court of Bangladesh.

3. That on 16th August 2o13, opposite Party No. 1, an intemational NGO, namely - Human Rights watch, its Head office being in 350 Fifth Avenue, 34th Floor, New York, Ny 10118-3299 USA, originated an article written by the Opposite Party No. 3, namely one Storm Tiv, an Associate of Asia Division, Human Rights Watch, his working address being [..] under the direct supervision of Opposite Party No. 2, namely Mr. Brad Adams, Executive Director, Asia Division, Human Rights Watch, his working address being [..] The said article was published via Opposite Party No l's worldwide official website (http://www.hrw.org) with the following caption: Bangladesh: Azam conviction based on flawed Proceedings: Analysis outlines how Fair Trial Rights of Accused Seriously Compromised fair trial’.

That the said article is attached herewith and marked as, Annexure-A.

4. That in the said article dated 16th August, 2013, the Opposite Party No. 1 with bias and mala fide intention most unethically commented, while the Appeals are pending before the Appellate Division of the Supreme Court of Bangladesh, on the Professor Ghulam Azam's trial proceeding at this Hon'ble Tribunal and the evidential issues of the same case.

5. That in the said scandalising article, the Opposite Party No. 1 alleged, inter alia, that:

(a) Judges of this Hon'ble Tribunal improperly conducted an investigation on behalf of the prosecution in the Azam Cose;

(b) There was collusion and biasness among prosecutors and judges in the Azam Case;

(c) The Tribunal failed to take steps to protect defense witnesses of the Azam Case,

(d) There were changes in the judicial panel during trial of the Azam Case; and

(e) There was lack of evidence to establish guilt beyond a reasonable doubt in the Azam Case.

6. That the Petitioner concedes that issues relating to above mentioned allegation (e) are clearly a matter sub-judice and issues relating to allegations (c) and (d) are of no relevance to the Petitioner and as such, the Petitioner does not at all rest his prayer on issues relating to allegations (c), (d) and (e).

7. That the petitioner submits that statements made in reference with the issues relating to above mentioned allegation (a) and (b) are biased, baseless, utterly false and fabricated, ill-motivated, and are not made in good faith. Such statements were made only to scandalize this Hon'ble Tribunal and its process (by exercising its independent judicial functions and also fair trial) and to undermine the confidence of the people in the integrity of this Hon'ble Tribunal and its process.

8. That the Petitioner therefore prays, relying upon issues relating to above mentioned allegations (a) and (b) only, that this Hon'ble Tribunal may issue an order of contempt against the above-mentioned opposite parties under section 11(4) of the International Crimes tribunals) Act,l973, read with Rule 45 of the International Crimes (Tribunal-1) Rules of Procedure, 2010 "

I Applicable Laws

9. That section 11(4) of the International Crimes (Tribunals) Act,1973 states that:

''A Tribunal may punish any person, who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal, with simple imprisonment which may extend to one year, or with fine which extent to Taka 5ive thousand, or with both.'

10. That moreover, Rule 45 of the International Crimes (Tribunal-I) Rules of Procedure, 2010 states that:

'In pursuance of section I I (4) of the Act, the Tribunal may draw a proceeding against any person who obstructs or abuses the process of the Tribunal, or disobeys any of its order or direction of the Tribunal, or who does anything which tends to prejudice the case of a party before the Tribunal, or tends to bring the Tribunal or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal.'

II. Jurisdiction of the Tribunal

11. That the Petitioner submits that this Hon'ble Tribunal has jurisdiction over the relevant matter and the parties.

12. That the Petitioner humbly submits that under section 11 (4) of the 1973 Act, this Hon'ble tribunal is empowered to punish 'any person', which includes both natural and legal person, whether living in Bangladesh or abroad, who 'tends to bring it or any of its members into hatred or contempt' and/or 'does anything which constitutes contempt of the tribunal' "

13. That the Petitioner humbly submits that the above-mentioned opposite parties, by publishing the said article through its worldwide website and thereby scandalising this Hon'ble Tribunal, either have 'tended' to bring this Hon'ble Tribunal into hatred or contempt and/or have 'done' aractwhich constitutes contempt of the Tribunal.'

14. That, therefore, this Hon'ble Tribunal has jurisdiction over the relevant matter and the parties under section 11(4) of the 1973 Act, read with Rule 45 of the International Crimes (Tribunal-l) Rules of Procedure, 2010.

III. Background of the Opposite Parties

15. That Opposite Party No 1 is an US based international human rights organization which has been in operation for the last 30 years or so" In its official website, at http://www.hrw.org/about, it claims to be 'one of the world's leading independent organizations dedicated to defending and protecting human rights'. It further claims that by focusing international attention where human rights are violated, it 'gives voice to the oppressed and hold oppressors accountable for their crimes'.

16. That the Opposite Party No t has been vehemently criticized worldwide for its motivated activities as a human rights organization. Some of the major allegations against the Opposite Party No 1 include, inter alia:

(a) allegations of poor research and inaccuracy;

(b) allegations of selection bias;

(c) allegations of ideological bias;

(d) allegations of unethical fund raising policies;

(e) allegations of bias for or against particular nations;

(f) allegations of appointing Nazi policy supporters (such as, Mr. Marc Garlasco) as investigator to report on war crimes and crimes against humanity;

17. That a wide number of reports, research publications, open letters of scholars etc. evidences the unethical and motivated role played by the Opposite Party No 1 in various parts of the world by its unreliable, uncredited, inaccurate and bias reports and findings on human rights matters. Even, the insiders like Mr. Robert L Bernstein, a founder and former chairman of the Opposite Party No 1 has publicly blamed the Opposite Party for its unethical and motivated activities.

IV Contemptuous Issues

18. That in the above mentioned scandalous report, originated by the Opposite parties, alleges that judges of this Hon'ble Tribunal improperly conducted an investigation on behalf of the prosecution in the Azam Case.

19. That the Petitioner submits that there is absolutely no base for bringing such scandalising allegation upon this Hon'ble Tribunal. The Petitioner also denies that there was ever any such request made by the prosecution in the Azam Case. Further, the judgment of the Azam Case does not at all endorse any such investigation being done by this Hon,ble Tribunal.

20. That the Petitioner submits that such allegation made by the Opposite parties are baseless, complete distortion of facts, ill-motivated and as such, unreliable. These statements were made merely to scandalize this Hon'ble Tribunal and its process. Also, the statements were made not in good faith and as such, tantamount to contempt of this Honorable Tribunal.

21. That further in the above mentioned scandalous report, originated by the the Opposite Parties, alleges that there was collusion and biasness among prosecutors and judges in the Azam Case.

22. That the Petitioner submits that there is absolutely no base for bringing such scandalising allegation upon this Hon'ble Tribunal. The petitioner also denies that there was ever any unholy or discrete association between this Hon'ble Tribunal and the prosecution. These statements were made merely to scadalize this Hon'ble Tribunal and its process. Also, the statements were made not in good faith and as such, tantamount to contempt of this Honorable Tribunal.

23. That the only reference made by the Opposite Parties to its finding of collusion and biasness among prosecutors and judges in the Azam Case was an alleged skype communication between a member of the bench with his acquaintance at a very personal level. The Petitioner concedes that the said member of the bench did voluntarily resign to avoid any unwanted controversy. However, the Petitioner submits that no inquiry, whether legal, social or technical, was ever made to find the authenticity of the said skype communication and as such, the existence, let alone, content of the skype communication, can not be relied upon to allege a collusion and biasness among prosecutors and judges in Azam Case.

V. Lack of Good Faith

24. That the Petitioner submits that the allegations (a) and (b) made in the scandalous article originated and published by the Opposite Parties lack 'good faith' on the part of the Opposite Parties. This is because:

i. For that the false and unreliable statements made in allegations (a) and (b) contained in the scandalous report of the Opposite Parties have unnecessarily questioned the image, standing and reputation of this Hon'ble Tribunal and as such, scandalized this Hon'ble Tribunal;

ii. For that the Opposite Parties have never carried on any independent investigation/research/inquiry to make such scandalous remarks contained in allegations (a) and (b) about this Hon'ble Tribunal and its process;

iii. For that the statements were inaccurate as it does not rely upon any reliable authority or in that matter any authority at all;

iv. For that the Opposite Parties, claiming to be an independent trial observer of the ICT BD, has never personally attended through any of its member or representative to observe a single trial of this Hon'ble Tribunal whether in Azam Case or other;

v. For that the false and unreliable statements made in allegations (a) and (b) contained in the scandalous report of the Opposite Parties are made long after pronouncement of the judgment of the Azam Case especially, when the Appeal of the Azam Case is pending before the Hon'ble Appelate Division of the Supreme Court of Bangladesh;

vi. For that the Opposite Parties are in a chronic habit of publishing reports relying upon poor research and inaccurate facts;

vii. For that the Opposite Parties are in a chronic habit of exercising selection and ideological bias;

viii. For that the Opposite Parties are in the habit of following unethical, immoral and undisclosed financial policies ;

ix. For that the Opposite Parties are heavily dependent upon their undisclosed donor (private persons and private organizations) driven fund and as such, committed to fulfill the agenda of such undisclosed donors;

x. For that the Opposite Parties do not practice any ethical standard in its recruitment policies and even go a long way to accommodate terrorists and human rights violators in their board;

xi. For that the Opposite Parties have illegally intervened in the judicial process of a sovereign country and tried to assassin the image of the entire process of trial of war criminals at the ICT BD and the judicial system, in general, of Bangladesh;

xii. For that the Opposite Parties have wrongfully exercised their 'freedom of expression' as guaranteed under Article 19 of the (Universal Declaration of Human Rights, 1948 and Article 13 of the American Convention of Human Rights, 1969 and as such, an contempt rule upon them shall not merit any 'chilling effect';

xiii. For that the Opposite Parties have violated all norrns of journalistic morality as expected under the international law;

xiv. For that the Opposite Parties under the veil of an human rights organization cannot become a partisan to a human rights issue simply because their undisclosed donors demand so;

xv. Finally, for that, statements made at allegations (a) and (b) contained in the scandalous report of the Opposite Parties do not only attract the provisions of section 1l(4) of the 1973 Act but also, the rules and practices of the international law.

VI PRAYER

Therefore, it is humbly prayed that this Hon'ble Tribunal may kindly:
(a) issue a contempt notice stating that why a contempt proceedings should not be initiated against the Opposite Parties in exercise of power of this Hon'ble Tribunal under section 11(4) of the International Crimes Tribunals) Act, 1973, read with Rule 45 of the International Crimes (Tribunal-l) Rules of Procedure;

(b) upon hearing, convict the Opposite Parties under section 11(a) of the International Crimes (Tribunals) Act, 1973, read with Rule 45 of the International Crimes Tribunal) Rules of Procedure, 2010 for publishing an article dated 16.08.2013 (Annexure - A) through its worldwide website and thereby scandalising this Hon'ble Tribunal by biased, baseless, false and fabricated and mala fide publication (Annexure -A), and as such, have either 'tended' to bring this Hon'ble Tribunal into hatred or contempt and/or have 'done' an act which constitutes contempt of the Tribunal';

(c) to stay further display, publication, circulation or use in any matter or in any other form of the scandalous Article dated 16.08.2013 (Annexure-A)

(d) upon conviction, sentence the Opposite Parties, with imprisonment of one year and/or adequate fine and forward and notify for the execution of the same to the competent state, i.e., USA through the Ministry of Foreign Affairs;

(e) issue any other order(s) or direction(s) that this Hon'ble Tribunal deems fit and proper for the interest of justice.

(New York) – The trial of Ghulam Azam, the former chief of Bangladesh’s Jamaat-e-Islaami (Jamaat) party, at Bangladesh’s International Crimes Tribunal was deeply flawed and did not meet international fair trial standards, Human Rights Watch said today.
In March 2010 Azam was charged with six counts of conspiracy, planning, incitement, complicity, murder, and torture as crimes against humanity at the International Crimes Tribunal, known as the ICT, a specially constituted tribunal set up to try those responsible for war crimes during Bangladesh’s 1971 independence war. The judgment, handed down on July 15, 2013, found Azam guilty on all counts and sentenced him to life in prison for 90 years. He was spared the death penalty due to old age. On August 12, the prosecution appealed the sentence, arguing that Azam deserved the death penalty.

“Human Rights Watch has long supported the efforts to deliver accountability for the atrocities committed during the 1971 war, and to ensuring meaningful justice to victims and survivors, through fair trials which meet international standards,” said Brad Adams, Asia director. “We sounded the alarm that the law and trial process were deficient, but the government ignored the warnings. The government has got the conviction it wanted, but it has failed to ensure a fair trial that settles once and for all whether Ghulam Azam was guilty.”

Human Rights Watch’s concerns about the Azam trial include:
· Judges improperly conducted an investigation on behalf of the prosecution
· Collusion and bias among prosecutors and judges
· Failure to take steps to protect defense witnesses
· Changes in the trial court panel; and
· Lack of evidence to establish guilt beyond a reasonable doubt

Among the most serious problems is the fact that the judges stated that they conducted an investigation to make up for deficiencies in the case presented by the prosecution. Judges in Bangladesh are only empowered to examine the evidence placed in front of them by the parties to the case. The defense counsel was not aware of this investigation and was thus unable to comment on or challenge the evidence obtained by the judges, which constitutes a serious violation of article 14 of the International Covenant on Civil and Political Rights, to which Bangladesh is a party. The investigation calls into serious question the impartiality of the court.

The ICT had not answered allegations of judicial bias raised by intercepted Skype and other communications in which The Economist revealed prohibited collusion between the judiciary, the prosecution, and the executive branch via an external consultant. Many conversations concerned the Azam trial, including ones which show that the judges laid out a blueprint to be used by the prosecution as to how to conduct the trial, which witnesses to call, and how to question them. The conversations make it clear that the judges were closely advising and directing the prosecution on presenting their case against Azam.

In addition, there have been ongoing problems with intimidation of defense witnesses and raids on defense chambers, including in the Azam case. The trial chambers have not ordered any investigation or offered any practical solution to overcoming the security concerns expressed by defense witnesses.

“The problems with the Azam trial are manifold, and lead to the inescapable conclusion that there has been strong judicial bias towards the prosecution and grave violations of due process rights,” Adams said. “The victims of these crimes and their families deserve real answers, which can only be found through fair and transparent proceedings.”

APPENDIX:

Bangladesh: Azam - Trial Concerns

Human Rights Watch has long supported efforts to deliver accountability for the atrocities committed during Bangladesh’s war of independence and to ensuring meaningful justice for victims and survivors through fair and transparent trials which meet the highest standards. Human Rights Watch takes no position on the guilt or innocence of any of the accused at the International Crimes Tribunal (ICT) of Bangladesh. Our concern is whether international fair trial standards are upheld.

The ICT was set up to try alleged war crimes and other grave violations of international humanitarian law during the 1971 war of independence from Pakistan. The war followed the victory of the East-Pakistan-based Awami League in the national elections. The Pakistani government, led by military ruler General Yahya Khan, refused to accept the results. On March 26, 1971, the government began Operation Searchlight, sending troops into East Pakistan to arrest Awami League leaders and put down protests. The Pakistani army and affiliated vigilante groups embarked on a massive wave of violence, including widespread rape. Estimates of the number of people killed range from 300,000 to 3 million. As many as 10 million people were reportedly displaced and fled to neighboring India. The Indian army intervened and joined resistance forces to defeat the Pakistani army after nine months of violence. The independent state of Bangladesh emerged in December 1971.

In response to this carnage, in 1972 the new government established special tribunals to try collaborators. In 1973, the parliament passed the International Crimes (Tribunals) Act. But, for political reasons, trials never occurred.

Bringing those responsible for the 1971 crimes to trial continues to have considerable popular support and was one of the main planks of the successful Awami League election campaign in 2008.

Background on Ghulam Azam
Ghulam Azam, 91, is one of the most senior members of the opposition Jamaat-e-Islami Party to have been tried by the ICT. Azam is the former chief of Jamaat. He was charged in March 2010 with six counts of conspiracy, planning, incitement, complicity, and murder and torture as crimes against humanity under the ICT Act. The judgment, handed down on July 15, 2013, found Azam guilty on all counts and sentenced him to 90 years in prison. He was spared the death penalty on account of his age. On August 12, 2013, the prosecution appealed the sentence, asking for Azam to be hanged.

Azam has been active in the Jamaat Party for many decades. He headed the East Pakistan branch of the party from 1969-1971 and was head of the party after independence from 1978 until his retirement in 2000. During the 1971 war, he and the Jamaat Party were opposed to Bangladesh’s independence. Azam was vocal in his opposition and was a member of the central Shanti or Peace Committee during the war. The Shanti Committee collaborated with the Pakistani army, acting both as local informants and as recruiters of fighters for various militant groups—including the Razakars, Al-Badr, and Al-shams—that supported the Pakistani army on the ground. These militant groups were responsible for serious human rights abuses during the war. Azam met senior members of the Pakistan government during the war, gave speeches exhorting people to resist the independence movement, and labelled pro-independence supporters as enemies of Islam. The prosecution alleged that Azam was responsible for the crimes outlined in the indictment as a result of his superior position in Jamaat, which gave him effective control over the various armed auxiliary units which supported the Pakistan army and whose members committed the actual crimes. The defense has denied that Azam had any control over armed units. It has argued that his opposition to an independent Bangladesh was not an indictable offense.

The Azam Trial
Many of the cases before the ICT, including the Azam trial, have been tainted by allegations of bias by the trial chambers towards the accused. Human Rights Watch has long drawn attention to credible allegations of improper interference against defense witnesses and defense counsel. In perhaps the most dramatic example, the trial chamber in another case essentially ignored the abduction of defense witness Shukhoranjan Bali from the gates of the courthouse, as detailed below.

Human Rights Watch is not in a position to say whether Ghulam Azam is or is not responsible for the crimes alleged in the indictment, but the process and evidence adduced render the trial fundamentally unfair under both Bangladeshi and international standards.
Below are key concerns that Human Rights Watch has identified with the ICT’s conduct of the Azam trial.

1. Judges Improperly Conducted an Investigation on Behalf of the Prosecution
In an extraordinary break with practice in Bangladesh, the judges in the Azam case conducted their own investigation into the case to make up for deficiencies in the case presented by the prosecution, calling into serious question the impartiality of the court. Defense counsel were unaware of this investigation, and were thus unable to comment and challenge the evidence obtained by the judges. This constitutes a serious violation of article 14 of the International Covenant on Civil and Political Rights to which Bangladesh is a party.

During the oral presentation of the verdict in court on July 15, 2013, the presiding judge, AKM Fazle Kabir, referred to the paucity of evidence presented by the prosecution during the trial, saying “the prosecution did not provide us with much” and “the documents which the prosecution . . . submitted as evidence were not adequate.”

Verdicts in ICT cases have usually been delivered within a month after final statements by each party. The Azam verdict was unusual as the judgment was delivered several months later because, as Justice Kabir explained in his oral statement, the judges decided to conduct their own investigation in order to strengthen the prosecution’s case. Justice Kabir noted that the prosecution had submitted mainly newspaper articles which were not reliable as they could often be wrong, and therefore the judges conducted their own research to get “reference books.” Although they reached a verdict of guilty on all counts, Justice Kabir went on to say that they “were still not too satisfied with the documents [they themselves] were able to collect,” all the while conceding that the case rests largely on documentary evidence.

Bangladesh is a common law country and trials are conducted on an adversarial basis. The standard practice in such jurisdictions is that the judges reach verdicts on the basis of the evidence produced by the various parties to the case. According to practicing lawyers in Bangladesh, judges do not conduct their own investigations when they find that they are unable to reach a guilty verdict.

The admission by Justice Kabir suggests that the judges were either under pressure to produce guilty verdicts or else had presumed Azam’s guilt. After the ICT trial of Abdul Qader Mollah, for example, who was sentenced to life in prison rather than death, crowds of hundreds of thousands took to the streets across the country to demand that he be executed.

Prime Minister Sheikh Hasina was reported by media as saying she would talk to the judges to convince them to take the sentiments of the protesters into account in sentencing. The government also responded by proposing and passing amendments to the ICT law, reducing the appeal period from 90 to 60 days and for the first time allowing the prosecution to appeal sentences.

Law Minister Shafique Ahmed said the amendment aimed to ensure equal rights for both the government and the accused.

2. Lack of Evidence to Establish Guilt Beyond a Reasonable Doubt
Human Rights Watch has no independent information on the role that Azam may or may not have played in the violence in 1971. However, the prosecution neither alleged nor offered any evidence showing Azam personally committed or ordered violence. The verdict issued by the court came to the same conclusion: “There are no allegations that he was physically present at any crime scene. And secondly, there are no allegations that he actively directed the commission of war crimes.”

The trial chamber concluded in its verdict that the bulk of the charges against Azam depended on circumstantial evidence, all of which was either documentary or hearsay, and effectively admitted that the evidence presented was not adequate for a conviction. The defense was unable to challenge any of the facts on which the court relied as a result of its own investigations, which took place after the court closed the presentation of evidence in the trial. The verdict relies, for example, on several books not presented as evidence during the trial in its finding that crimes against humanity, genocide, and other war crimes were committed during the war. The defense was similarly unable to comment on the judges’ reliance on other documentary evidence regarding Azam’s role in the crimes of militia units.

The vast majority of documentary evidence was contemporaneous newspaper accounts whose veracity could not be determined and whose reliability is subject to question, particularly given the strict censorship laws in effect at the time. The chief prosecution witness who tendered these documents, the investigating officer, acknowledged the pervasive censorship in effect at that time and admitted during cross-examination that he was unable to determine the veracity of the newspaper accounts. This was confirmed by the first prosecution witness who relied, in large part, on documentary evidence during his testimony. Reliance on unverified newspaper accounts to establish facts essential to proving Azam’s superior responsibility over the various armed groups opposed to an independent Bangladesh raises serious fair trial concerns.

As we have also previously noted, the Azam judgment appears to suggest that there is no need to prove a connection between the accused and the charged offense. Different parts of the judgment make this point, but it is made most definitively in paragraph 288 in response to an argument by the defense that the prosecution had failed to “identify any specific offence…commited pursuant to any action of the accused.” The trial judgment states, “We hold that ‘nexus’ is not required to prove genocide and widespread killing when attack was directed against unarmed civilian population.” This statement suggests that the trial chamber, which admitted that the prosecution failed to provide evidence linking the accused directly to any crime and that the guilty verdict was arrived at through circumstantial evidence alone, found Azam guilty of genocide and crimes against humanity without finding a connection between him and the crimes.

3. Collusion and Bias Among Prosecutors and Judges
Human Rights Watch notes that the Azam trial was among the cases discussed by an ICT judge, prosecutors, members of the executive branch and an external consultant in leaked communications published by The Economist in December 2012. The communications addressed many topics, but the most troubling among them provide strong evidence of collusion between ICT judges, prosecutors, officials in government office, and an external consultant.

Many of the leaked conversations revealed that the chair of the trial chamber, Justice Nizamul Huq, and the consultant essentially were guiding the prosecution in making the case against Azam as well as the accused in other cases. It is clear from the communications that there were prior discussions about what charges to bring against Azam. A document attached to an email sent to Huq by the consultant, sets out the strategy to be followed by the prosecution in making their case against Azam.

The leaked communications contain several conversations in which Huq and the consultant discuss not only who the prosecution should list as witnesses, but also what the content of their testimonies should be. In one conversation, for example, the consultant tells Huq that the prosecutor is worried about a particular witness and that therefore the witness should not be allowed to talk about the Pakistani army or the war for fear that the witness might ascribe guilt to the Pakistani army and shift culpability away from Azam. In another conversation, Huq instructs the consultant to tell the prosecutor how to conduct his examination of the prosecution’s investigating officer, saying that the prosecutor was not doing a good job. There are several discussions about the importance of the Azam trial, and whether it can be expedited so that it would be the first judgment handed down by the ICT given the pressure from the government to hand down a verdict by mid-December 2012. Reading the conversations as a whole, it is abundantly clear that the chair of the tribunal had regular meetings and discussions with the prosecutors in the Azam case.
Human Rights Watch had several meetings with Huq over a two-year period, and observed first-hand instances of close collaboration between Huq and the prosecutors. In one meeting, Huq referred to the prosecution as “us” throughout the meeting. In another meeting, Huq instructed both the registrar and a prosecutor to sit in and had them confirm to us nearly everything he said.

Although Chairman Huq effectively admitted in court that the leaked conversations published by The Economistwere real and resigned shortly thereafter , the ICT has refused to examine the communications or follow-up on the collusion they revealed, saying that the way they were obtained was illegal and therefore the content of the intercepts could not be admitted into evidence. At a minimum, the ICT should have ordered an investigation into the wrongdoing. This the ICT has not done: instead, the tribunal authorities simply disregarded this irrefutable evidence of judicial bias.

The Law Minister, Shafique Ahmed, stated that Huq’s resignation did not affect the proceedings in any of the ICT cases. The tapes suggest that Ahmed and the State Minister for Law have interfered with the independence of the judiciary at the ICT. In one conversation, for example, Huq spoke about how Ahmed summoned Judge Ahmed for a meeting and asked him to resign and how Huq convinced Ahmed to claim he was resigning on medical grounds. In another conversation, Huq spoke to the consultant about the pressure he was under from the Law Minister to make the Azam case the first judgment from the ICT. The consultant confirmed that he had received a similar message from Ahmed.

Human Rights Watch believes that the impropriety revealed by The Economist necessitates a new trial for Azam and all other accused whose cases were discussed by Huq.

4. Failure to Take Steps to Protect Defense Witnesses
In the Azam case, as in other cases before the ICT, the defense has alleged that members of the prosecution and government security agents intimidated defense witnesses, including by threatening their arrest should they cooperate with the defense.

The court initially allowed the defense to call 12 witnesses. The prosecution was allowed to call 16 witnesses. The court cited the practice of international tribunals to justify its limits on the number of witnesses. However, the court ultimately heard the evidence of only one defense witness, closing down the case when defense counsel asked for a week’s adjournment to address what it said were concerns with the security of the remaining witnesses.

Defense witnesses have compelling reasons to believe that they may not be safe before, during, or after their testimony at the ICT. Defense witnesses, many of whom live in remote villages, have reported harassment for cooperating with defense counsel. Several witnesses have been threatened with criminal charges. At least one researcher working for the defense has had to go into hiding due to threats. A defense witness in the Azam case refused to testify claiming that the prosecution’s investigating officer told him he would face war crimes charges if he testified. No investigation was ordered into this allegation.
In the most dramatic case, witness Shukhoranjan Bali was allegedly abducted from the gates of the courthouse in November 2012 as he was coming to give evidence in the trial of another accused. Immediately after the alleged abduction, defense lawyers told the trial chamber what had happened. The court ordered the prosecution, not the police, to investigate the claim and accepted the prosecution’s response a few hours later that the entire episode had been fabricated by the defense. Bali has since confirmed to an independent lawyer that he was abducted and then taken by Bangladesh security forces over the border into India, where he was arrested for illegal entry. The court has done nothing to investigate or hold accountable those responsible for the abduction and this gross interference with the administration of justice.

The abduction of Bali and threats against other defense witnesses appear to have had a direct impact on the Azam trial. As noted above, while the defense initially indicated it would call 12 witnesses, in the end it called only one, citing security concerns.
On December 9 the defense asked for a one week adjournment to address these concerns, but the court refused to give the defense any more time and ordered the case closed after the testimony of the son of the accused, the sole defense witness. The court did not issue any orders for witness protection or safe passage, nor did it order any investigation into the threats and other forms of witness intimidation alleged by the defense. The trial chamber had also previously refused to issue summonses for two international expert witnesses called by the defense who needed visas to enter Bangladesh.

The ICT has failed to meet its obligation to protect witnesses. Human Rights Watch notes that although the court ordered a safe house to be set up, the prosecution team told us the safe house was under its control. No separate arrangements were made for defense witnesses who believed they would be at risk if their whereabouts were known to the prosecution. Both the prosecution and judges told Human Rights Watch that the allegations of intimidation are outright fabrications by the defense and, as noted above in the Bali case, they simply denied the abduction ever happened.

5. Changes in Trial Court Panel
Frequent changes to the three-judge panel in the Azam trial mean that only one judge heard the entirety of the evidence.

The first panel in the Azam case, formed in March 2010, consisted of Chairman Justice Nizamul Huq, Judge Ahmed, and Judge Kabir. The trial started in June 2012 with opening statements from the two parties.

Judge Ahmed resigned unexpectedly in August 2012 and was replaced by Judge Jahangir, who heard the last two months of the prosecution’s case but missed the first two witnesses. The court’s judgment relied heavily on the testimony of the first witness, Moontassir Uddin Khan Mamun, a history professor at Dhaka University.

Judge Kabir left the Azam trial in March 2012, before it had even started, when he was transferred to chair the second tribunal at the ICT.

Judge Kabir was replaced by Judge Anwarul Huq, who was the only judge on the panel to hear the entirety of the case against the accused.

On December 11, 2012, as already noted, Nizamul Huq resigned after audio tapes and email correspondence were published by the Economist revealing he had colluded with the prosecution.

Justice Kabir was reassigned to the case the following day, replacing Huq. When closing arguments in the Azam trial finished in April 2013, Justice Kabir had heard only the last few months of the case, which amounted to one defense witness and none of the prosecution witnesses.

It is critical for judges to hear all the evidence in a case and to be in a position to judge the credibility of the witnesses, particularly in a trial involving 40-year-old evidence and complex legal issues. The ICT has failed on this front as well.

About Me

This is a personal blog, and any views are solely mine. I am a Bangladesh based journalist who has since August 2010 worked as Editor, Special Reports for the Bangladesh national newspaper, New Age (see my other blog on the International Crimes Tribunal in Bangladesh: http://bangladeshwarcrimes.blogspot.com) Prior to working at New Age, between March and September 2010, I worked as a senior editor and reporter at the news website, bdnews24.com and before that I spent seven months at the Bangladesh newspaper, the Daily Star, setting up a small investigations unit. Between 2000 and 2009, I was the Executive Director of the Centre for Corporate Accountability, a UK based not-for-profit organisation concerned with workplace safety. Before that, I worked as a Television journalist and producer for about seven years working mainly for the television production company, Twenty Twenty Television in London. In 1995, I was involved in making the Royal Television Society award winning Channel Four documentary, the 'War Crimes File', a film about war crimes allegedly committed by three men during the 1971 War of Indpendence. I have lived in Dhaka since 2003.